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USMC | DRB | 2006_Marine | MD0600181
Original file (MD0600181.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00181

Applicant’s Request
The application for discharge review was received on 20051103 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060915 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-marital.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:
“ My discharge was in equitable because it was based on one isolated incident of insubordination as three of four charges against me were dismissed .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant , dtd October 20, 2005
Letter from J_ H_ , dtd October 20, 2005 (3 pgs)
Letter from Retired State Senator L_L_ undated
Letter from Tulsa Police Department Officer J_W_, dtd March 2, 2002
 Applicant’s DD Form 214
Character Reference ltr from J_ P _, dtd February 20, 2002
Special Court Martial Supplemental Order NO 96-960, dtd June 17, 1996
Request for Clemency, dtd October 5, 1992 (3 pgs)
 Letter from Applicant (3 pgs)
 Staff Sergeant M. P. H_’s direct examination (8 pgs)
Meritorious Mast Certificates (2)
 Decision from U.S. Navy-Marine Corps Court of Military Review, dtd April 22, 1994 (4 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19880630 – 19890611               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19890612              Date of Discharge: 19960617

Length of Service (years, months, days):

 Active: 0 7 0 0 05 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              72 day s

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 51

Highest Rank: LCPL                          MOS: 1345

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 1 ( 1 0)                       Conduct: 4 . 2 ( 1 0)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge 3d Awd, Meritorious Mast 2d Awd, Letter of Appreciation, Certificate of Appreciation, Humanitarian Service Medal, Southwest Asia Service Medal, Joint Unit Commendation, Meritorious Unit Commendation, Navy Unit Commendation, Sea Service Deployment Ribbon, National Defense Service Medal.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

 BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

880630:  CO waiver approved.
901004:  NJP for violation of UCMJ, Article 86: At, Camp Foster, on 19Sep90, from 0515-0915 was UA from PT formation.
 Award: Forfeiture of $189.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
901114:  NJP for violation of UCMJ, Article 86: At, Camp Foster, on 27Oct90 from 0630-0750 was UA from the messhall.
 Award: Forfeiture of $186.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
910304:  Counseling: Advised of deficiencies in performance and conduct (During the last past 6 months Applicant have been frequently involved with military authorities Applicant has received 2 NJP’s one on 901010 for Art 86 and one 901116 for Art 86. Applicant has been counseled on lack of timeliness and disregard for authority.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910314:  Counseling: Advised of deficiencies in performance and conduct (Wrongfully appropriation of a government vehicle by taking it to the chow hall for the noon meal .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920316:  NJP for violation of UCMJ, Article 92: On or about 920213 at 2100, violate CCO P1103.1 by possessing beer in the barracks.
         Award: Forfeiture of $440.00 pay per month for 2 months (Forfeiture of $440.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2. A ppealed. Appealed denied 920401.

920403:  Forfeiture of pay awarded at NJP on 920316 vacated due to continued misconduct.
920 529 :  Special Court Martial [trial dates 29 May, 20, 21 July, 7, 10-11 August 1992 ]
          Charge I: violation of the UCMJ, Article 91 , ( 2 specifications).
          Specification 1: On 920328, willfully disobey a lawful order from Sgt P. S. S_, USMC, “to leave the duty hut,” or words to that effect. Plea : Not Guilty. Finding : Guilty.
         Specification 2: On 920328, was disrespectful in language to Sgt P. S. S_, USMC by saying to him, “Hey man, why don’t you sign B_ papers so we can go to chow”, “ Why don’t you sign his papers man, we need to go to chow then we have to go and work for the Officer of the Day.” And “This is bulls --- you’re just stalling us from going to chow,” or words to that effect. Plea : Not Guilty. Finding : Guilty.
         Charge II: violation of UMCJ, Article 9 1 ,
         Specification: On 920328, fail to obey a lawful order by w rongful ly having visitors who did not report to the duty NCO prior to their visit. Plea : Not Guilty. Finding : Dismissed.
         Additional Charge I : violation of UCMJ, Article 91 ( 2 specifications).
         Specification 1: On 920328, willfully disobey a lawful order from Sgt B. H. T_, USMC, to “police call the 1 st Force Service Support Group Enlisted parking lot,” or words to that effect. Plea : Not Guilty. Finding : Guilty.
         Specification 2 : On 920328, willfully disobey a lawful order from Sgt B. H. T_, USMC, to “field day the grand shack,” or words that effect Plea : Not Guilty. Finding : Guilty.
         Additional Charge II: violation of UCMJ, Article 92 (2 specification),
         Specification 1: On 920328, willfully disobey a lawful order, to perform extra duties concurrent wit your restrictions,” or words to that effect. Plea : Not Guilty. Finding : Dismissed.
Specification 2: On 920328, was derelict in the performance of his duties in that he willfully failed to “police the 1 st Force Service Support Group Enlisted parking lot and Officer of the Day trailer . ” Plea : Not Guilty. Finding : Dismissed.
         Sentence: Confinement for 9 0 days, forfeiture of $ 523. 00 pay per month for 3 month s , reduction to E-1, Bad Conduct discharge.
         CA 930303 : S entence is adjudged and ordered executed .

920812 :  Joined the Base Brig, Marine Corps Base, Camp Pendleton, California, for confinement.
9 2 1023 :  From confinement, restored to full duty.

930420 :  Applicant to appellate leave.
930513 :  NC&PB clemency not granted; restoration denied.
940422 :  N avy M arine Corps Court of Military Review a ffirmed findings and sentence.

940826:  Petition for Grant of Review by the U.S. Court of Military Appeals held in abeyance until final disposition is made by the U.S. Court of Military Appeals.

 960208 :  US C ourt of Appeals for the Armed Forces affirmed the decision of the United States Navy Marine Corps Court of Mi litary Review.

960530 :  Appellate review complete.
960617 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960617 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant states that his discharge was inequitable because it was “based on one isolated incident . . . .” In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91 (willfully disobedience of a non commissioned officer and disrespect to a non commissioned officer).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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